Three Charter Tension Points: Positive Rights, S. 2 Analysis, and International Law

1. Three Charter Tension Points: Positive Rights, S. 2 Analysis, and International Law Michael Lynk Faculty of Law Western University The Right to Strike Workshop Queen’s University 24 April 2015

2. 1. Positive Rights and Charter Debates Sightings of roots under the living tree: • Vriend (1998) – s. 15 • Dunmore (2001) – s. 2(d) • Gosselin (2002) – s. 7 • MPAO (2015) – s. 2(d) McLachlin CJC: (Gosselin) “Nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty and security of the person…One day s. 7 may be interpreted to include positive obligations [because of] the living tree.”

3. 1. Positive Rights and CharterDebates Arbour J. (Gosselin) (Dissenting) “Constitutional rights are not simply a shield against state interference with liberty; they place a positive obligation on the state to arbitrate competing demands arising from the liberty and rights of others.”

4. 2. S. 2 Analysis - Test S. 2(a) – Freedom of Religion McLachlin CJC: “An infringement of s. 2(a) of the Charter will be made out where: (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measures interfere with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial” Alberta v. Hutterian Brethren of Wilson Colony (2009), para. 32.

5. 2. S. 2 Analysis - Test S. 2(b) – Freedom of Expression When faced with an alleged violation of the guarantee of freedom of expression, the first step in the analysis is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee [ie, conveys a meaning, and is not violent]…If the activity falls within the protected sphere of conduct, the second step…is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression.” Dickson CJC, Irwin Toy Ltd. v. Quebec (1989)

6. 2. S. 2 Analysis - Test s. 2(d) – Freedom of Association “The test [for s. 2(d)], then, is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining.” Abella J, SFL, para. 78.

7. 3. International Law Chamberlain v. Surrey School District (2002) – s. 2(a) (Freedom of Religion) • IC Civil & Political Rights Keegstra (1990) – s. 2(b) (Hate speech) • Inter’l Convention on Racial Discrimination • IC Civil & Political Rights Baker v. Canada (1999) – Immigration/ Administrative Law • Convention on Rights of the Child • Declaration on Rights of the Child • Universal Declaration of Human Rights

8. 3. International Law Suresh v. Canada (2002) – s. 7 (Refugee Rights/Torture) • Convention against Torture • 1st, 2nd, 3rd & 4th Geneva Convention • European Convention of Human Rights • IC Civil & Political Rights • Vienna Convention of law of Treaties • Convention on Status of Refugees • “The provisions of the Immigration Act dealing with deportation must be considered in their international context...  Similarly, the principles of fundamental justice expressed in s. 7  of the Charter and the limits on rights that may be justified under s. 1  of the Charter cannot be considered in isolation from the international norms which they reflect.  A complete understanding of the Actand the Charterrequiresconsideration of the international perspective.” [Para. 59]